2435396 (Refugee) - [2025] ARTA 1102

2435396 (Refugee) [2025] ARTA 1102 (3 January 2025)
Decision and
Reasons for Decision

Respondent:

Minister for Immigration and Multicultural Affairs

Tribunal Number:

2435396

Tribunal:

General Member F Robertson

Date of written statement:

3 January 2025

Place:

Perth

Decision:

The Tribunal affirms the decision under review

Statement made on 03 January 2025 at 3:09pm

CATCHWORDS
REFUGEE – protection visa – Nigeria – religion – Christian – Catholic – race – Igbo – applicant convicted of drug offences in Australia – physical assault – threats from Boko Haram – fear of killing – sanctions against citizens returning to Nigeria with drug convictions overseas – fear of extortion – return visits to Nigeria – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 198AAA, 499
Migration Amendment Act 2024
Migration Regulations 1994, Schedule 2
CASES
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83
ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496
DIJ16 v Minister for Home Affairs [2019] FCA 1038
DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1
EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804
EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1177
Fox v Percy [2003] HCA 22; 214 CLR 118
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559
NAHI v Minister for Immigration [2004] FCAFC 10
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816
W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
Statement of reasons
INTRODUCTION

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').
The applicant, [an age]-year-old male from Nigeria, has applied for a review of that decision. For these reasons, the decision under review should be affirmed.
CRITERIA FOR THE GRANT OF A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, either, they are a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds or are a member of the same family unit as such a person who holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the decision‑maker is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail thx of that country.[1]
[1] Migration Act 1958 (Cth), s 5H(1)(a).
A person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.[2] Among other things, persecution must involve serious harm[3] and systematic and discriminatory conduct.[4]
[2]        Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[3]        Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.
[4]        Migration Act 1958 (Cth), s 5J(4)(c).
A fear of persecution will be 'well‑founded' if there is a 'real chance' that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[5] A 'real chance' is a prospect that is not 'remote' or 'far‑fetched', it does not require a likelihood of persecution on the balance of probabilities.[6]
[5] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[6] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.
Complementary protection criterion
If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the 'complementary protection criterion' under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a 'necessary and foreseeable consequence' of return to the receiving country.[7] 'Significant harm’ is exhaustively defined in s 36(2A) of the Act.[8]
[7] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[8] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant was born in [specified year] in Umuahia, Abia State, Nigeria. In December 2009, he was granted a Provisional Spouse visa and travelled to Australia in March 2010. He was granted a Spouse visa in November 2011. The applicant's [siblings] live in Aba, Abia State, and his father lived in Aba before his death in July 2013. The applicant left Australia on three occasions, last returning in February 2014.
The applicant's first return trip to Nigeria was in August 2012. The applicant's evidence at the hearing was that this trip was to renew his passport and because his father was ill. He returned to Australia in September 2012. The second trip was in May 2013 and the applicant returned to Australia in July 2013. His evidence was that he returned this time because his father was ill. I note that his father died shortly after the applicant returned to Australia. As for the third trip, which occurred in December 2013 the applicant's evidence was that he returned to Nigeria for his father's funeral before he returned to Australia in February 2014.
The applicant was arrested in April 2014 and charged with offences related to the importation of commercial quantities of border-controlled drugs. The applicant was convicted of those offences and sentenced to a term of immediate imprisonment.
Protection visa application
The applicant applied for a protection visa in August 2024. That application claimed that he faced a real chance of serious harm in Nigeria because of his Christian faith and because of his convictions for drug-related offences in Australia.
The applicant was not interviewed in connection with his application. However, the delegate invited the applicant to provide more information about his claims.
The applicant responded on 31 August 2024, stating that he was a Catholic renewal minister in Aba, Abia State, who would evangelise in open gatherings and conduct Bible studies. He claimed that [in] November 2008, he took a bus to Owerri, Imo State, and upon arrival, he and the people accompanying him were attacked by a group who tore up his Bible and assaulted him. He stated that the right side of his head and lips were cut with a machete, and he experienced other facial injuries as well. He claims he was hospitalised as a result. The applicant also provided a medical report dated [in] December 2008 from the [Medical Centre 1] in Owerri, Imo State in support of his claims.
Delegate's decision
The delegate did not accept that the applicant faces a real chance of serious harm in Nigeria for the reasons claimed by him or for any other reason. As to the claims related to the applicant's religion, the delegate concluded:
While I accept that the Nigerian political and security situation is complex with particular challenges in multireligious and multiethnic regions, I consider that there is no evidence before me to indicate the applicant would be treated discriminatorily or mistreated and harmed in his home area of Abia State where Christianity is a majority religion and Igbo are the majority ethnicity. In addition, country information indicates that the Nigerian government regularly undertakes security operations against Islamist groups throughout the country. There is no information available to indicate that the authorities allow Islamist groups to persecute Christians freely without repercussions.
While I recognise that multifaceted security challenges exist in Nigeria, I note that the applicant does not have a profile that would expose him to a higher risk of harm than the general Igbo Christian population in his home area. The applicant did not have a profile of adverse interest to the Nigerian authorities or anyone else before he left the country. There is no information before me to indicate that the applicant has acquired a risk profile of interest since he left Nigeria. Having weighed the information before me, I do not find the applicant would face a real chance of harm in the foreseeable future for reasons relating to his Igbo Christian and Biafran profile if he were to return to his home region in Abia State, Nigeria.
I have considered the applicant's claims and find they do not give rise to a real chance of serious harm. Accordingly, I am not satisfied that the applicant faces a real chance of serious harm if he is returned to Nigeria.
The delegate also dealt with the applicant's claims relating to his convictions. In doing so, the delegate referred to information included in the Department of Foreign Affairs and Trade ('DFAT') Country Information Report for Nigeria[9] and in a country information report by DFAT, dated 22 January 2024, specifically on ‘Section 22’ or 'Decree 33' as it is sometimes known (‘Section 22 CIR’). Relying on that country information, the delegate concluded:
The applicant claimed that as a Nigerian with an overseas drug conviction, he will be subject to immediate arrest and a five year jail term if he is returned to Nigeria.
I note that the 2020 DFAT country information report for Nigeria states that Nigerian citizens returning from overseas with a criminal record can be charged under Decree 33 of the National Drug Law Enforcement Agency Act (1990). Decree 33 provides for the prosecution of returning to Nigeria with criminal convictions from overseas, including those with drug convictions and other serious crimes (including money laundering, fraud, armed robbery and rape). The minimum sentence under Decree 33 is five years’ imprisonment. In practice, the Nigerian government has rarely given effect to Decree.
According to DFAT, the last instance of someone being charged under Section 22/Decree 33 of the National Drug Law Enforcement Agency Act (1990) dates back to 2003. The National Drug Law Enforcement Agency has not sought to apply the law since this time and, in line with commitments made under international counter narcotic agreements, is in favour of its repeal.
The country information available indicates that Nigerian Nationals with overseas convictions are not subject to mandatory arrest and imprisonment upon return, and that Decree 33 is not currently applied. I consider that the country information indicates that Decree 33 is not actively used to prosecute Nigerians returning to Nigeria with convictions, including drug convictions such as the applicant’s. Considering the country information before me, I do not accept there is a real chance or a real risk that the applicant will be prosecuted because of his drug conviction in Australia if he is returned to Nigeria now, or in the reasonably foreseeable future. I am not satisfied that the applicant will suffer significant harm as defined under s36(2A) of the Act if he were returned to Nigeria. (citations omitted)
[9] 'DFAT Country Information Report - Nigeria', Department of Foreign Affairs and Trade, 3 December 2020, 20201203131031 ('2020 DFAT Report').
As a result of the conclusions reached by the delegate, they were not satisfied that the applicant satisfied either s 36(2)(a) or 36(2)(aa) of the Act. Thus, the delegate did not assess the criteria in 36(1B), 36(1C) and 36(2C).
REVIEW APPLICATION
The applicant applied for review of the delegate's decision. On 15 November 2024, the applicant appeared before the Tribunal to give evidence and present arguments. I refer to the material evidence below.
After the hearing, the applicant's representative sought—with the applicant’s consent—a period of 28 days to provide written submissions. On 16 December 2024, the applicant's representative sought and was granted an extension until 18 December 2024 to provide those submissions. Written submissions were provided on 18 December 2024.
The evidence and material relied upon
In addition to the written submissions relied upon, in support of his application for a protection visa, and in support of his review application in this Tribunal, the applicant relied on:
(a)the applicant's written statement in response to questions asked by the Department dated 31 August 2024, with attached photographs of injuries and a medical report from the [Medical Centre 1] dated [in] December 2008;
(b)a statement from [Witness A]; and
(c)a letter from [Doctor A], dated 7 November 2024, a medical practitioner working in the [Medical Centre 1] in Imo State.
I note that [Doctor A] was the author of both the letter dated [in] December 2008 and the letter dated [in] November 2024. I note that the applicant also provided the department with an email chain between the applicant's representative and [Doctor A] from September 2024.
[Doctor A] also gave oral evidence at the hearing. In summary, [Doctor A’s] evidence was that he treated the applicant whilst he was hospitalised. He claims that he specifically recalled the applicant, and that people came to the hospital asking for the applicant by his first name. [Doctor A] also gave evidence about, among other things, people coming to the hospital and killing another Christian who was a patient. [Doctor A] also claimed that the people responsible for the attacks have many ways of identifying people.
[Witness A] also gave oral evidence at the hearing. In summary, [Witness A’s] evidence was that the applicant's 'case' had come to his attention visa a human rights organisation, [named]. His evidence was that had 'looked into' the applicant's 'case', including by attending at the hospital at which the applicant was treated. He claims that when he did so, he was told 'it was true'. He claims that he talked to a doctor at the hospital who confirmed what the applicant had claimed.
The applicant also relies on country information which was provided to the Department and to the Tribunal as follows:
(a)country information titled 'Nigeria Appeal', which claims that over 12 years, Nigeria has seen 43,000 Christians killed by terrorists and 17,500 churches attacked
(b)a report from Open Doors in respect of Christian Persecution in Nigeria;
(c)a 'research briefing' from the Website of the UK Parliament in relation to 'Freedom of religion or belief in Nigeria';
(d)a report titled 'Why are Christians Persecuted in Nigeria and the West African Sahel?’;
(e)an article title 'Why Nigeria is the Most Dangerous Country in the World for Christians' authored by Sean Nelson;
(f)a further article from Open Doors in respect of Christian persecution in Nigeria;
(g)a report from Vision about Christians being among 700 kidnapped in Nigeria;
(h)an opinion piece from Newsweek, written by Sean Nelson, entitled 'Religious Persecution in Nigeria is Getting Worse;
(i)an article from 'Lawsanne Movement' entitled 'Global Analysis – Christian Persecution in Nigeria';
(j)a copy of answers to questions prepared by Mr O, along with his accompanying CV.
The applicant's submissions
The applicant relied on written submissions dated 13 November 2024 and 18 December 2024 which I have considered.
The applicant submits that he fears persecution, in the form of violence or death, from Muslims in Nigeria because of his faith and his 'previous activities in Nigeria in standing up for Christians as a renewal minister in the Catholic Church in Nigeria'.[10]
[10] See applicant's written submissions dated 13 November 2024, [4].
The applicant further claims that he would be identified on return to Nigeria as a person who has an overseas drug conviction because, it is submitted, information on people returning with convictions is routinely shared by governments worldwide.[11] The applicant submits that:
Given these illegalities conducted by corrupt court and jail officials would be highly embarrassing to the officials involved, not to mention the country, and given the applicant had first-hand knowledge as he was a victim of these illegalities, we submit that it is clear from the test in Guo Wei Rong that the test in relation to a fear being well-founded operates from a very low threshold and may be “far less than a 50 per cent chance”. It is submitted that, on this basis, the fear of persecution expressed by the applicant herein is not only genuine but also well-founded.
[11] See applicant's written submissions dated 13 November 2024, p 5.
The claim regarding the applicant's religion is raised as a claim that satisfies either or both of s 36(2)(a) and s 36(2)(aa). At the hearing, the applicant's representative confirmed that the claim regarding the applicant's convictions was only raised as a claim engaging s 36(2)(aa).
ANALYSIS, FINDINGS AND REASONS
An applicant is responsible for providing sufficient evidence to establish their claim to be a person in respect of whom Australia has protection obligations.[12] When assessing the claims made, I am not required to uncritically accept any or all the allegations made.[13] Rebutting evidence is not required before I can find a particular factual assertion is not made out.[14]
[12] Migration Act 1958 (Cth), s 5AAA; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 [148] (Ladhams J).
[13] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).
[14] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 [7] (Heerey J).
In making this decision, I have considered the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs[15] and the DFAT Country Information Report.[16]
[15] See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.
[16] 2020 DFAT Report.
Credibility

Assessing credibility is a difficult task,[17] which should be careful, thoughtful, and conducted fairly and reasonably.[18] Inconsistencies may or may not be significant[19] and allowances may be required where an account is given through an interpreter.[20] I should usually give the benefit of the doubt to those who are generally credible but are unable to substantiate their claims.[21]
[17]       See Fox v Percy [2003] HCA 22; 214 CLR 118 [31] citing Samuels JA in Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326, 348.
[18]       See AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 [22]–[28] (Kenny, Griffiths and Mortimer JJ).
[19]       ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 [39]–[45] (Griffiths, Mortimer and Steward JJ).
[20]       See, for example, Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 [5] (Burchett J), W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 [15]–[19] (Lee, Carr and Finkelstein JJ); AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 [22]–[28] (Kenny, Griffiths and Mortimer JJ) and ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 [39]–[45] (Griffiths, Mortimer and Steward JJ).
[21]       Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 [203]-[204].
Country of nationality
The applicant claimed to be a national of Nigeria. The applicant travelled to Australia on a passport which appears to have been regularly issued by that country. I accept the applicant's submission and am satisfied that Nigeria is the applicant’s country of nationality and the receiving country.
In relation to Nigeria, country information suggests Nigeria has over 250 ethnic groups and languages.[22] The largest groups are the Hausa in the north, the Yoruba in the southwest and the Igbo in the southeast, who account for around a fifth of the population each.[23]
[22]       See <       See <>
Ethnicity in Nigeria does not necessarily dictate religious identity, with many ethnic groups comprising both Muslims and Christians.[24] The Nigerian constitution recognises freedom of religion.[25]
[24]       2020 DFAT Report, [3.12].
[25]       2020 DFAT Report, [2.49].
DOES THE APPLICANT SATISFY THE REFUGEE CRITERION?
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or is for the reason claimed.[26] Moreover, past events are not a certain guide to the future but may provide a reliable basis for determining the probability of their recurrence.[27]
Harm feared in relation to, or arising out of, the applicant's religion
[26] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559 [124] (Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow JJ).
[27] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574.
Country information
The population of Nigeria is roughly split between Muslims and Christians, with a small percentage belonging to other or no religious groups.[28] The so called 'traditional divides' between the ‘Muslim North’ and ‘Christian South’ continue to persist, though significant Christian communities exist in the north and Muslim communities in the south.[29]
[28] 2020 DFAT Report, [3.12].
[29] 2020 DFAT Report, [3.12].
Around three-quarters of Nigerian Christians are Protestant, including large populations in Anglican, Baptist, and Presbyterian churches, alongside other active denominations such as evangelicals, Pentecostals, and Methodists.[30] About a quarter of Nigerian Christians are Roman Catholics, with evangelical Christian denominations rapidly growing in various regions.[31]
[30] 2020 DFAT Report, [3.13.
[31] 2020 DFAT Report, [3.13].
Nigeria's Constitution guarantees freedom of movement as a fundamental right.[32] ‘Internal migration is very common in Nigeria. Nigerians often live and work in different parts of the country from their family origins or birthplaces.[33] Discrimination against ethnic groups not indigenous to their areas has, however, been reported in some areas.[34] Those regarded as ‘indigenes’ of a state are often given preferential access to public resources, government jobs, access to education, and other opportunities not made available to ‘settlers’.[35]
Boko Haram
[32]       2020 DFAT Report, [5.30].
[33]       2020 DFAT Report, [5.31].
[34]       2020 DFAT Report, [5.30].
[35]       2020 DFAT Report, [5.55].
Boko Haram is a Sunni Islamic extremist group with a sphere of operations that encompasses the Northern Nigerian Sambisa Forest and the Mandara mountains on the Nigeria-Cameroon border.[36] Boko Haram means "Western education is forbidden" in the Hausa language.[37] Boko Haram pledged allegiance to, and was accepted as a branch of, Islamic State in March 2015 and renamed itself as Islamic State West Africa Province ('ISWAP').[38]
[36]       'Boko Haram', Australian Government, Australian National Security, 3 July 2023, <       'Boko Haram', Australian Government, Australian National Security, 3 July 2023, <       'Boko Haram', Australian Government, Australian National Security, 3 July 2023, <>
In December 2019, the US Department of State added Nigeria to a Special Watch List for governments engaging in or tolerating severe violations of religious freedom, citing the perceived failure of state authorities to protect religious communities from insurgency-related violence.[39] In 2021, Boko Haram’s total membership was estimated at around 1500, with members originating chiefly from north-eastern Nigeria and neighbouring regions.[40] Following the death of their leader in May 2021, authorities in both Nigeria and Cameroon reported an increase in the number of Boko Haram militants surrendering to government and military forces.
[39]       2020 DFAT Report, [3.23].
[40]       'Boko Haram', Australian Government, Australian National Security, 3 July 2023, <>
The Australian government has reported, based on publicly available information about Boko Haram it considers to be accurate, reliable, and corroborated by classified information where available that:
Boko Haram has engaged in terrorist attacks and kidnappings against a wide range of targets in Nigeria and neighbouring countries. Recent attacks that can be reliably attributed to Boko Haram include:
18 January 2023: Boko Haram abducted eight farmers and killed one person in Makilwe village, Borno state, Nigeria.
26 December 2022: Boko Haram militants attacked and killed 17 herders guarding cattle near Airamne village in Mafa district, Nigeria.
11 December 2022: Boko Haram militants killed seven civilians during attacks on Fougoh village and Fourkoulom camp for internally displaced persons.
24 May 2022: Boko Haram militants launched an attack in Rann village in Borno State, Nigeria, killing over 50 people.
24 February 2021: Boko Haram militants killed 10 people during a rocket attack in Maiduguri, Nigeria.
23 March 2020: Boko Haram militants staged an attack on Chadian troops station at a base in Bohoma, killing 98 Chadian soldiers.
More recently, it has been reported that at least 80 people have died and several are missing after an attack by suspected Boko Haram jihadists in Nigeria’s north-eastern Yobe state.[41]
[41] 'At least 80 dead after suspected Boko Haram attack in Nigeria', Agence France Presse (AFP) - France, Guardian, The, 04 September 2024, 20240904152125.
Despite claiming an Islamist motivation, Boko Haram has attacked both Christian and Muslim communities and institutions in its northeast insurgency.[42] The group has targeted churches and mosques with IED attacks, reportedly destroying 59 churches and 22 mosques since 2010.[43] Most disappearances in Nigeria relate to abductions carried out by insurgent groups, particularly Boko Haram.[44]
[42]       2020 DFAT Report, [3.20].
[43]       2020 DFAT Report, [3.20].
[44]       2020 DFAT Report, [4.11].
According to the International Committee of the Red Cross, almost 22,000 Nigerians have been reported missing over the last decade due to the Boko Haram conflict.[45] Some more high-profile incidents include the July 2019 killing of 65 people in a Muslim community and the December 2019 execution of 10 Christians and one Muslim by an ISWAP-affiliated faction.[46]
Geographical aspects of the risk of harm
[45] 2020 DFAT Report, [4.11].
[46] 2020 DFAT Report, [3.20].
While there have been serious violent attacks on Christians, this is predominantly in the north and northeast of Nigeria. Whilst generalised crime, including kidnapping, has increased, Lagos has not been subjected to attacks by Boko Haram and is heavily protected.[47] The risk to Christians appears to be proximate to the Central Belt and North of Nigeria, commonly referred to as the 'Muslim north'. That conclusion is also supported by the country information relied upon by the applicant which talks about the risk to Christians being from Boko Haram, Fulani Herdsman and ISWAP.[48]
[47] ‘Terror attacks and kidnappings spread in Nigeria: Why Lagos could be a target’, 26 June 2024, The Conversation, <
[48] See, for example, 'Why are Christians Persecuted in Nigeria and the West Africa Sahel', undated; 'Why Nigeria is the Most Dangerous Country in the World for Christians', S Nelson, 16 June 2024.
Conflict in the Middle Belt between predominantly Muslim Fulani herders and Muslim and Christian farmers has led to many deaths, injuries, and displacements.[49] Christian NGOs claim that religious identity is a primary driver of this conflict, with violence predominantly targeting Christian communities, religious leaders, and churches.[50] International observers note that some state and local governments have unofficially endorsed specific religions, restricting the activities of other groups.[51] Reports suggest that both Christian and Muslim groups face discrimination in some areas, including limitations on freedom of expression and assembly and barriers to government employment.[52]
[49]       2020 DFAT Report, [3.21].
[50]       2020 DFAT Report, [3.21].
[51]       2020 DFAT Report, [3.19].
[52]       2020 DFAT Report, [3.19].
Boko Haram, despite claiming an Islamist motivation, has attacked both Christian and Muslim communities and institutions in its northeast insurgency.[53] The group has targeted churches and mosques with IED attacks, reportedly destroying 59 churches and 22 mosques since 2010.[54] High-profile incidents include the July 2019 killing of 65 people in a Muslim community and the December 2019 execution of 10 Christians and one Muslim by an ISWAP-affiliated faction.[55]
[53]       2020 DFAT Report, [3.20].
[54]       2020 DFAT Report, [3.20].
[55]       2020 DFAT Report, [3.20].
The conflict in Nigeria is multi-dimensional, with religious identity being one of many factors. Other drivers include ethnicity, politics, lack of accountability, competition over land resources, population growth, soil degradation, and displacement due to crime and violence. Conflicts in the Sahel and Lake Chad Basin have altered grazing routes, leading to clashes between herder groups and new communities. The UN notes that demographic and ecological pressures have increased internal livestock movement in the Middle Belt.
Open Doors rates Nigeria as the sixth most dangerous country in the world to live as a Christian.[56] Open Doors reports that Christians comprise around 66% of the local population in the south-west of Nigeria.[57]
[56] Nigeria: Full Country Dossier, Open Doors International, March 2024 ('Open Doors'),
[57] Open Doors, p 17.
President Tinubu was elected in February 2023. Open Doors reports that there are signs that President Tinubu might want to ease the growing polarisation in the country between its Christian and Muslim populations.[58] It reports that President Tinubu made a major reshuffle in various posts to establish a better balance between Muslim and Christian critical officeholders.[59] Open Doors concludes that this could lead to more effective intervention by security forces on behalf of Christians and encourage a positive shift in recognition of religious freedom violations against Christians by the government.[60]
[58]       Open Doors, p 9.
[59]       Open Doors, p 9.
[60]       Open Doors, p 9.
The applicant relies on an article from ADF International and highlights the following paragraph:
But one country in particular, Nigeria, is the most dangerous country in the world for Christians. In 2022, roughly 5,000 Christians were murdered for their faith – more than the number killed in all other countries combined. For 2023, one estimate put the number of Christians targeted and killed in Nigeria at over 7,000.
The article continues to report that '[t]he severe Christian persecution in Nigeria, particularly in the northern regions, makes it the most dangerous country in the world for Christians.'
Consideration and conclusions
The applicant claimed to be a 'Catholic charismatic' at the hearing. I accept that. I also find that he is a Christian from Abia State and that Aba, in Abia State, is his home area. I also accept that he was a leader in his church whilst he lived in Nigeria, including that he would evangelise and participate in other activities, including but not limited to bible studies. I am satisfied that the applicant would return to those activities if he were to be returned to Nigeria.
Harm feared related to past events
In considering whether the applicant faces a real chance of serious harm because of his religious beliefs, now or in the reasonably foreseeable future, it is necessary to consider both the applicant's personal circumstances and the country information available.
The applicant claims to have been a renewal minister and an evangelist from Abia State and that, among other things, he would evangelise in public gatherings. I am prepared to accept that the applicant has this profile.
The applicant further claims that in November 2008, he was attacked and seriously harmed after travelling to Owerri in Imo State, which was about [time] from where the applicant lived. Imo State and Abia State border each other. He claims that following this attack, the persons responsible for the attack attended the hospital, asked for him by name and intended to kill him. I note that [Doctor A] and [Witness A] support the applicant's evidence in this regard.
That said, I place limited weight on [Witness A’s] evidence. At best, I am prepared to accept it as evidence of his personal beliefs and what he has been told. However, as I explain below, I prefer and attach greater weight to the available independent country information.
I accept that the applicant is a Christian who engages in evangelising and was seen as a leader and minister in his church. I accept that in November 2008, the applicant travelled to Imo State with other Christians to, among other things, participate in a Bible study. I accept that during this gathering, the group was attacked by individuals who, as the applicant claims, were Muslim. I also accept that the applicant was seriously harmed in this attack, required hospitalisation, and bears scars as a result. However, I am not persuaded that the applicant was individually targeted during the attack or that the attackers identified him specifically before the incident or his subsequent hospitalisation. Based on the evidence, I find that the attack was random, targeting the group because they were identified as Christians and that the applicant was identified as the group’s leader during the attack.
I accept that the attackers sought to harm the applicant further by locating him at the hospital and that they obtained his identity, likely through information provided by hospital staff.
Considering the evidence, I am not satisfied that the applicant had a pre-existing adverse profile in either Abia State or Imo State due to his religion or other factors that would make him a specific target. I do not accept that the applicant was personally targeted during the initial attack. However, I accept that he was targeted following the attack because he had already been harmed and identified, not due to any prior profile with the attackers or, more generally, in Imo State.
I accept that the applicant was seen as the group's leader and that this increased his likelihood of being targeted post-attack. I accept that the attackers identified him after the attack and sought him specifically at the hospital. I further accept that had they located him there, they likely would have killed him.
Notwithstanding these findings, I am not satisfied that the applicant has any particular profile, fame, or notoriety that would enable the attackers to locate him proactively within his home area or elsewhere. I am also not satisfied that the applicant remains of any adverse interest to the group that attacked him and his followers.
I do not accept that the attackers knew the applicant’s identity before his hospitalisation. I find it plausible that the attackers, likely local to Imo State, could have obtained the applicant’s details through connections with hospital staff. I infer that the attackers identified the applicant based on information provided by a hospital employee. Such a situation plausibly explains why the group could ask for the applicant by name during his hospitalisation.
I accept that if the applicant were to return to Nigeria, he would likely continue to participate in his faith and work as a minister and evangelist. This aligns with country information showing the growth of Evangelical Christianity in Nigeria’s North Central, Southeast, South, and Southwest regions. [61]
[61] 2020 DFAT Report, [3.13].
However, I am not persuaded that the group or individuals behind the 2008 attack remain interested in harming the applicant. I do not accept that they possess an intelligence network capable of tracing the applicant’s whereabouts beyond the information obtained from the hospital around his admission. I am satisfied that even if the applicant were to return to Nigeria, I consider it unlikely that these individuals would have the means or capacity to locate him. In my view, such a conclusion is supported by the relative proximity of the attack location to his home, approximately [time] away and the applicant’s ability to remain safely in Nigeria for more than a year before coming to Australia. Even assuming the group retains an interest in the applicant, the evidence before me indicates that the group does not exercise broader reach beyond Imo State or the ability to engage in an organised pursuit of the applicant.
Moreover, in arriving at these conclusions, I have given weight to the applicant’s ability to reside in Nigeria without experiencing further harm until around March 2010. Additionally, I have considered that the applicant voluntarily returned to Nigeria on three separate occasions without being harmed. While I accept the applicant’s stated reasons for these returns, his willingness to re-enter Nigeria and remain there during these periods voluntarily is difficult to reconcile with the extent and nature of the harm he claims to fear due to his religious beliefs and profile.

I also find that it is relevant that more than 16 years have passed since the attack occurred. I find it both improbable and implausible that the perpetrators remain actively interested in locating or harming the applicant after such a significant period. I find that the passage of time substantially reduces the likelihood of a continued threat from these individuals. Furthermore, I do not accept the submission that the applicant’s prior harm, combined with his absence from Nigeria, will result in persecution or retribution upon his return. I am not satisfied that the applicant’s ‘escape’—either from his attackers in 2008 or from Nigeria itself—would expose him to a real chance of serious harm now or in the reasonably foreseeable future.
While it is impossible to guarantee any individual's safety, I am confident that the applicant's likelihood of being harmed by the individuals or group responsible for the 2008 attack, for any reason, is remote
Harm faced more broadly
I have also considered the applicant's claims that he faces a real chance of serious harm for the essential and significant reason of his religion more broadly. I accept that, on return, the applicant would continue to evangelise and lead people in Bible studies and other Christian religious activities. I accept that he would participate in his faith in many ways, including attending church and preaching.
The Igbo are Nigeria's third largest ethnic group;[62] are predominantly Christian and live in 'large numbers' in Abia State, the applicant's home area, and Imo State.[63]
[62] 2020 DFAT Report, [3.7].
[63] 2020 DFAT Report, [3.7]
I am satisfied that the Nigerian government undertake security operations against Islamic groups nationwide. The applicant did not point to any country information that would satisfy me that the Nigerian authorities would allow, permit, overlook or ignore the persecution of Christians by Muslims, Islamist organisations, or any other groups.
Whilst there is country information that Nigeria has, at times, struggled to, or failed to, respond in a meaningful way to protect religious communities from the threats posed by Islamist and other religiously motivated groups,[64] I do not accept that leads to the conclusion urged upon me that Muslim fanatics have strong government connections or that the Nigerian government would condone or excuse religious violence in the applicant's home area. Indeed, the country information indicates that Muslims have also been targeted, albeit in lesser numbers. Rather, the failings of the Nigerian authorities when it comes to their response to religious and insurgent violence reflect the multi-dimensional nature of the conflict, which disproportionately affects different geographical areas, particularly the north and central areas, in different ways.
[64] See generally 2020 DFAT Report, [2.54]-[2.71]; [5.2]-[5.3]; [5.6].
Whilst I accept that there is country information, some of which I have referred to above, which supports the conclusion that Christians in Nigeria are persecuted and many are killed, that information needs to be considered in context. Such violence is common in the middle belt of Nigeria.[65] The killing of 160 people occurred on Christmas Eve in 2023.[66] Those attacks occurred in Plateau State, in northern Nigeria, which is part of the area commonly referred to as the 'Muslim north'. Even the country information relied on by the applicant supports the conclusion that the persecution and discrimination of Christians is the strongest in the ‘Muslim north’.[67]
[65]       See 'Why are Christians Persecuted in Nigeria and the West Africa Sahel', undated.
[66]       'Freedom of religion or belief in Nigeria – Research Briefing', House of Commons Library, 1 February 2024.
[67]       'Freedom of religion or belief in Nigeria – Research Briefing', House of Commons Library, 1 February 2024.; Open Doors; 'Why Nigeria is the Most Dangerous Country in the World for Christians', S Nelson, 16 June 2024.
In terms of the claims by [Doctor A] that religiously motivated attacks have been increasing in Imo State and resulted in increased hospitalisation, those claims are anecdotal evidence and are not sufficiently explained or expressed to, in my view, warrant significant weight being placed on them. Otherwise, [Witness A] suggests, among other things, that:
Tribal, religious and social dissent and bigotry have grown to higher different dimension particularly since the emergence of Muslim- Muslim ticket government in this country.
I place limited weight on [Doctor A’s] and [Witness A’s] views on the prevailing conditions, circumstances, and country situation in Nigeria and their impact on my assessment of the applicant's claims. I prefer the more independent country information referred to in this decision.
Based on all the information and material before me, I am satisfied that Christians have been seriously harmed and killed in Nigeria in the past. However, I am satisfied that these incidents have overwhelmingly occurred in Nigeria's northern states and the central belt.
I am not satisfied that the applicant faces a real chance of serious harm for any reason related to his faith. In making that assessment, I have considered, among other things, the applicant’s personal attributes as discussed and the chance of being subjected to a future, albeit random, attack because he is Christian. I find that the chance of the applicant being harmed for any reason related to his faith, including the way he participates in his faith, is remote.
Weighing up all of the country information before me and the applicant's claims and evidence, I am not satisfied that the applicant faces a real chance of serious harm, as that term is defined in the Act, or that he faces a real chance of being subjected to discriminatory treatment, or otherwise mistreated, either now or in the reasonably foreseeable future, for any reason whatsoever if he were to return to Abia state for the essential and significant reason of his religion or any reason related to his religion, including but not limited to his evangelism and religious leadership.
Harm feared arising out of, or in relation to, being returned to Nigeria from Australia
Notwithstanding that the applicant's representative submitted that the harm feared on account of the applicant's drug convictions was a claim only raised under s 36(2)(aa), I have considered his claims in this regard under s 36(2)(a). I have done so because the applicant has submitted in the submissions lodged after the hearing that 'the risk the applicant faces does not impact the population of Nigeria generally, and instead impacts the applicant personally and selectively as a returning Nigerian with overseas drug convictions.'
Based on that submission, it is arguable that the applicant claims to belong to a particular social group and that the harm may be due to his membership in that particular social group. Before I consider the essential and significant reason for any harm and whether the applicant is a member of a particular social group, I will first consider whether the applicant faces a real chance of serious harm for the reasons claimed under this heading.
Country information
The conditions facing returnees to Nigeria are discussed in the 2020 DFAT Report as follows:
Exit and Entry Procedures
5.38 The Immigration Act (2015) provides the legal and regulatory framework for the entry and exit of persons into or out of Nigeria. The Nigerian Immigration Service (NIS), an agency under the Federal Ministry of Interior, is charged with the responsibility of regulating and approving immigration, emigration, and the granting of visas and entry permits into Nigeria.
5.39 Section 17 of the Act requires every passenger who arrives or departs Nigeria from any recognised port to produce a landing or embarkation card, and to satisfy an immigration officer that he or she is the holder of a valid travel document. According to Section 39 of the Act, the Comptroller-General of Immigration may at any time revoke any entry permit under the Act, if he/she deems it to be in the public interest. Under Section 31 of the Act, the Minister of Interior also has the power to prohibit the departure of any person from Nigeria on public interest grounds, which can include insufficient funds, invalid visas or passports, no return airfare or a ‘doubtful mission’. In July 2020, the Minister invoked the section while preventing 58 medical doctors from departing the country on the grounds that they did not have entry visas for the United Kingdom.
5.40 Officials from the NIS and other agencies, including police and drug enforcement agencies, meet flights returning failed asylum seekers. Once disembarked, authorities transport the returnees to a reception centre, where they are processed by NIS. The NIS can reportedly seize the passports of Nigerians who have been deported for a minimum of two years.[68]
…
Conditions for Returnees
5.41 Thousands of Nigerians enter and leave the country every day. According to the National Commission for Refugees, Migrants and Internally Displaced Persons, Nigeria received a total of 11,494 returnees in 2018, of which 10,180 were from Libya. There is no evidence of any stigma attaching to such returnees.
5.42 Nigerian nationals may return voluntarily to any region of Nigeria at any time by way of the Voluntary Assisted Return and Reintegration Programme, run by the International Organization for Migration (IOM) and co-funded by the European Refugee Fund. The Programme provides assistance with obtaining travel documents, booking flights, and organising re-integration assistance in Nigeria, and is open to those awaiting an asylum decision or the outcome of an appeal, as well as failed asylum seekers. Upon arrival, returnees can receive immediate assistance such as food, medical screening, overnight accommodation and money (up to 100 Euros) for basic needs and transportation. Returnees can also receive in-kind re-integration assistance and skills training.
5.43 The government allocated 100 billion naira (around AUD400 million) in its 2019 Budget to projects that included re-integration efforts for returnees. Some states also offer monthly stipends for returnees. In August 2019, the government established the Ministry of Humanitarian Affairs, Disaster Management and Social Development, which aims to better coordinate rehabilitation and re-integration efforts.
[68] 2020 DFAT Report, [5.38]-[5.40].
There is no evidence that the applicant has a valid Nigerian passport. I am satisfied that the applicant would likely return to Nigeria involuntarily and would have the profile of a deportee and failed asylum seeker.
Based on the information in the 2020 DFAT Report, I am satisfied that the applicant would likely be met by the Nigerian authorities at the airport, including police and drug enforcement agencies. Even if the applicant holds a valid passport, I am confident that the applicant's passport may be seized for a minimum of two years but will be seized for a longer period. I am also prepared to accept that the applicant may face a ban on travelling from Nigeria for an indeterminate period.[69] However, I do not accept that having a passport seized or facing a travel ban involves the applicant facing a real chance of serious harm.
[69] 2020 DFAT Report, [5.39].
Otherwise, the applicant would return to Nigeria alone. I find that he would return to Abia State, where he has [siblings] living.
I am satisfied that, subject to my conclusions on the issues related to the applicant's convictions, which I deal with below, the applicant could return to any region of Nigeria, and reintegration assistance would be available to him.[70] However, I find that he can safely return to Abia State. In that regard, I am satisfied that the applicant could return to Nigeria by air and travel from the airport in Lagos to Aba in Abia State.
[70] 2020 DFAT Report, [5.42].
Returnees to Nigeria with overseas drug convictions
I accept that, as the applicant claims, he would be returning to Nigeria with convictions in Australia involving drug offences. In that regard, I note that DFAT Reports that:
5.44 Nigerian citizens returning from overseas with a criminal record can be charged under Decree 33 of the National Drug Law Enforcement Agency Act (1990). Decree 33 provides for the prosecution of Nigerians returning to Nigeria with criminal convictions from overseas, including those with drug convictions and other serious crimes (including money laundering, fraud, armed robbery and rape). The minimum sentence under Decree 33 is five years’ imprisonment. In practice, DFAT understands the Nigerian Government has rarely given effect to Decree 33.[71]
[71] 2020 DFAT Report, [5.41]-[5.44].
The applicant provided the Tribunal with a copy of s 22 of the National Drug Law Enforcement Agency Act ('NDLEA Act'). That section provides:
1. Any person whose journey originates from Nigeria without being detected of carrying prohibited narcotic drugs or psychotropic substances, but is found to have imported such prohibited narcotic drugs or psychotropic substances into a foreign country, notwithstanding that such a person has been tried or convicted for any offence of unlawful importation or possession of such narcotic drugs or psychotropic substances in that foreign country. Shall be guilty of an offence of exportation of narcotic drugs or psychotropic substances from Nigeria under this subsection
2. Any Nigerian Citizen found guilty in any foreign country of an offence involving narcotic drugs or psychotropic substances and who thereby brings the name of Nigeria into disrepute shall be guilty of an offence under this Subsection
3. Any person convicted of an offence under subsection (1) or (2) of this section shall be liable to imprisonment for a term of five years without an option of a fine and his assets and properties shall be liable to forfeiture as provided under this Act.
The Section 22 CIR dated 22 January 2024 includes information about s 22 of the NDLEA.[72] The Section 22 CIR reports as follows:[73]
Q.1 Is paragraph [5.44] of the 2020 DFAT report on Nigeria still accurate, that the Nigerian Government rarely gives effect to Decree 33?
R.1. Yes, paragraph 5.44 of the 2020 DFAT Country Information Report on Nigeria remains accurate. While Decree 33 remains law in Nigeria, it has been rarely given effect by the Nigerian Government.
Q.2 Is DFAT aware of any cases in the last 3 years (since the DFAT report of December 2020) in which Decree 33 was applied? If so, what were the circumstances?
R.2. DFAT is unaware of any cases in which Decree 33 has been applied in the last three years.
Q.3 Given the comment in the December 2020 DFAT report that ‘DFAT understands the Nigerian Government has rarely given effect to Decree 33’, is the Post aware of whether Nigerian citizens who had been convicted of serious criminal offences overseas, are still charged under s22/Decree 33 of the National Drug Law Enforcement Agency Act (NDLEA Act) upon return to Nigeria, but then routinely released on bail. Or if this practice is not ‘routine’, is the Post aware of any such instances?
R.3. The last instance for which Post is aware of someone being charged under Section 22/Decree 33 of the National Drug Law Enforcement Agency Act (1990) dates back to 2003. The National Drug Law Enforcement Agency has not sought to apply the law since this time and, in line with commitments made under international counter-narcotic agreements, is in favour of its repeal. Noting the law does not appear to have been applied in over 20 years, Post is unable to comment on if any persons specifically charged under it in the future would be routinely released on bail. However, Post notes that the percentage of persons in Nigerian correctional facilities currently awaiting trial is high. This indicates that, in general, bail is either not routinely offered, or able to be made, by a large number of persons charged with a crime in Nigeria.
[72] 'Nigeria: Country Information - Decree 33', Department of Foreign Affairs and Trade, 22 January 2024, 20240122172912.
[73] 'Nigeria: Country Information - Decree 33', Department of Foreign Affairs and Trade, 22 January 2024, 20240122172912.
The applicant submits the country information, to the effect that s 22 of the NDLEA Act is rarely used, should not be afforded significant weight. It is submitted that:[74]
[previously] “country information” of a very general nature has been provided including on occasion “advice” by unnamed and uncredited Australian government or government-employed individuals that this section of the NDLEA Act is not currently being prosecuted. This information is typically based on “Google searches” and such. We submit that the applicant is still subject to this law, regardless of what Google might suggest.
[74] See applicant's written submissions dated 13 November 2024, p 10.
The applicant also makes several submissions regarding the NDLEA Act and the risk that he faces because of it. Essentially and relevantly, it is submitted:
(a)the arrest, detention and questioning of Nigerian nationals who return to Nigeria with an overseas drug conviction, facilitated by s 22 of the NDLEA Act, constitutes a breach of Article 14(7) of the International Covenant on Civil and Political Rights and its Second Optional Protocol[75];
(b)section 22 provides for an 'automatic finding of guilt' resulting in a 5-year jail sentence and forfeiture of assets.[76] The applicant submits that the provision means that there is no need for a trial because the law imposes a 'summary finding of guilt' based solely on the fact of the overseas drug conviction[77];
(c)country information in the form of annual reports from the National Drug Law Enforcement Agency ('NDLEA') indicates that persons returned to Nigeria with overseas drug convictions have been 'debriefed, documented and released on bail' which leads to an inference that persons have been arrested and charged with an offence under s 22 of the NDLEA;[78] and
(d)the annual reports of the NDLEA demonstrate that the organisation is able to, and does, clearly identify returnees with overseas drug convictions, which is said to evidence 'a sufficient notification system' about the fact of overseas drug convictions.
[75]       See applicant's written submissions dated 13 November 2024, pp 10-11; see applicant's written submissions dated 18 December, p 4.
[76]       See applicant's written submissions dated 13 November 2024; see applicant's written submissions dated 18 December, p 3.
[77]       See applicant's written submissions dated 13 November 2024; see applicant's written submissions dated 18 December, p 3.
[78]       See applicant's written submissions dated 13 November 2024; see applicant's written submissions dated 18 December, p 3.
The applicant also relies on a memorandum from a Nigerian lawyer, Mr O. Mr O opines that s 22 of the NDLEA Act remains 'good law' because it has not been repealed and is still 'in effect'. Mr O reports:
According to the last Annual Report released by NDLEA, every Nigerian deported after a drug related conviction overseas is arrested upon arrival at the Nigerian airport, interrogated and subsequently granted bail pending the outcome of an investigation. In 2019, eighty-five (85) Nigerian nationals were deported from other countries over drug related offences and all eighty-five (85) Nigerians were detained upon arrival in Nigeria.
Hence, the enforceability of the law is still operation as it is the sole basis for the arrest and detention of Nigerians upon arrival in Nigeria.
Mr O refers to the extent of enforcement of s 22 of the NDLEA and suggests:[79]
The enforcement of Section 22 of the NDLEA Act against Nigerian citizens returning to Nigeria with drug convictions overseas seems to be part of a broader, multi-dimensional approach by the National Drug Law Enforcement Agency (NDLEA) to tackle drug abuse and trafficking within the country. Still, there is no record of the enforcement of this approach.
While specific details on the enforcement of Section 22 against individuals with overseas drug convictions returning to Nigeria are not readily available and several efforts to reach their legal team and appropriate contact persons have proved abortive.
[79] 'Questions on section 22 of the NDLEA Act', Mr O, undated.

I accept that, as the applicant claims, he would be returning to Nigeria with a criminal record involving drug offences. As such, I accept the submission that s 22 of the NDLEA Act, in general, and s 22(2) of the NDLEA Act, in particular, could potentially apply to him.
For the applicant to be exposed to a charge under s 22 of the NDLEA Act, the Nigerian authorities would first have to be aware of the fact of his convictions.
Mr O opines that 'international cooperation and the exchange of information between law enforcement agencies globally are standard practices in combating drug trafficking.'[80] Mr O suggests that there are 5 'mechanisms' in place for how Nigerian officials obtain data on overseas convictions, namely ‘ international cooperation', 'Interpol', 'bilateral agreements', 'diplomatic channels' and 'requests for legal assistance'.[81] Additionally, I note that the applicant also claimed that he would not conceal his criminal convictions from the authorities in Nigeria and would disclose those convictions.
[80] 'Questions on section 22 of the NDLEA Act', Mr O, undated.
[81] 'Questions on section 22 of the NDLEA Act', Mr O, undated.
Significantly, recent legislative amendments have affected the ability of the Australian authorities to disclose information about persons to the authorities in other countries when seeking to return people to their home countries. Following the hearing in this matter, the Migration Amendment Act 2024 (Cth) ('Amendment Act') was passed by parliament. The Amendment Act commenced on 4 December 2024. Of particular relevance to the applicant’s claims is that the Amendment Act inserted s 198AAA into the Act on 5 December 2024. Section 198AAA is entitled '[c]ollection, use and disclosure of information to foreign countries' and is in the following terms:
(1)The Minister or an officer of the Department may collect, use, or disclose to the government of a foreign country, for a purpose mentioned in subsection (2), information (including personal information) about:
(a)a removal pathway non‑citizen; or
(b)a former removal pathway non‑citizen who does not hold a substantive visa or criminal justice visa.
Note: To avoid doubt, personal information includes criminal history information.
(2) The purposes are as follows:
(a)determining whether there is a real prospect of the removal of the non‑citizen from Australia under section 198 becoming practicable in the reasonably foreseeable future;
(b)facilitating the removal of the non‑citizen from Australia under that section;
(c)taking action or making payments in relation to:
(i)a third country reception arrangement (within the meaning of section 198AHB); or
(ii) the third country reception functions (within the meaning of that section) of a foreign country;
(d)doing a thing that is incidental or conducive to the taking of an action, or the making of a payment, mentioned in paragraph (c);
(e)purposes directly or indirectly connected with, or incidental to, any of the above.
Circumstances in which information must not be disclosed
(3)However, information about a non‑citizen must not be disclosed to the government of a foreign country under subsection (1) if:
(a) the non‑citizen has made a valid application for a protection visa that has not been finally determined; or
(b)in the case of an unlawful non‑citizen—the non‑citizen cannot be removed to that country because of subsection 197C(3); or
(c) in the case of a lawful non‑citizen—the non‑citizen could not be removed to that country because of subsection 197C(3) if the non‑citizen were an unlawful non‑citizen.
Certain existing prohibitions do not apply
(4)Despite Division 3 of Part VIIC of the Crimes Act 1914, any other law of the Commonwealth,or any law of a State or Territory, this section has effect in relation to information about any conviction of an individual that is spent (however described) under any of those laws.
No limitation on existing powers
(5) This section does not limit any other powers the Minister or an officer of the Department has to collect, use or disclose information under this Act, the regulations or any other law of the Commonwealth.
Note: For example, the Minister or an officer of the Department may also collect, use, or disclose to a person or body, criminal history information for the purpose of informing the performance of a function or the exercise of a power under this Act or the regulations (see section 501M).
Definitions
(6) In this section:
government of a foreign country means:
(a) the government of the foreign country or of part of the foreign country; or
(b) an agency or authority of the government of the foreign country; or
(c) an agency or authority of the government of part of the foreign country; or
(d)a local government body or regional government body of the foreign country.
Section 198AAA applies to information, including personal information, about a removal pathway non‑citizen'[82] or 'a former removal pathway non‑citizen who does not hold a substantive visa or criminal justice visa'.[83] 'Removal pathway non-citizen' is defined as, relevantly, an unlawful non-citizen who is required to be removed from Australia under s 198 of the Act as soon as reasonably practicable.[84]
[82] The phrase 'removal pathway non-citizen' is defined in s 5(1) of the Migration Act 1958 (Cth).
[83] Migration Act 1958 (Cth), s 198AAA(1).
[84] Migration Act 1958 (Cth), s 5(1).
Section 198AA makes clear that personal information includes criminal history information. The section permits the collection, use, or disclosure of that information to the government of a foreign country to determine whether the non-citizen can be removed from Australia.[85] The information cannot be disclosed if, among other reasons, there is a valid application for a protection visa which has not been finally determined.[86] Section 198AAA applies to the prospective use or disclosure of information, even if that information was obtained before s 198AAA came into operation.[87]
[85]       Migration Act 1958 (Cth), s 198AAA(2) read with s 198AAA(1).
[86]       Migration Act 1958 (Cth), s 198AAA(3).
[87]       Migration Amendment Act 2024 (Cth), sch 4, item 2.
In my view, the ordinary meaning of s 198AAA(3) is that disclosure of information to the Nigerian authorities cannot occur until after the final determination of the applicant's protection visa application. That means, at present, the information cannot be disclosed. It would only be after a decision was made to affirm the refusal of the applicant’s protection visa that disclosure under s 198AAA(3) would be permitted.
That said, the inquiry that I am undertaking is prospective. In my view, it would be artificial to approach that consideration on the basis that s 198AAA would not permit the Australian authorities to disclose to the Nigerian authorities information about the applicant, including information about his criminal convictions, because he has an undetermined protection application presently on foot.
In my view, the sensible way to approach the proper consideration of the applicant's claims is to assume that the applicant would become, at some indeterminate time in the future, a 'removal pathway non-citizen' to whom s 198AAA would apply. Based on that assumption, I am prepared to accept that:
(a)section 198AAA would permit information about the applicant's criminal convictions to be lawfully disclosed to the Nigerian authorities; and
(b)when arrangements are made to remove the applicant from Australia to Nigeria, the Nigerian authorities will likely be informed about the applicant's criminal convictions.
In these circumstances, I am prepared to accept that if the applicant were to return to Nigeria, the Nigerian authorities would be aware of his criminal convictions.
The potential impact of the NDLEA Act
The issue then arises is whether the applicant faces a real risk of significant harm based on the Nigerian authorities’ knowledge of his criminal convictions. The feared harm is related to s 22 of the NDLEA Act and, relatedly, the prospect of corrupt authorities using s 22 of the NDLEA to extort the applicant.
I accept that the NDLEA Act remains part of Nigerian law and could potentially apply to the applicant. However, the question of whether the law continues to operate and whether it would be applied to the applicant or would be applied to the applicant in a way that would engage s 36(2)(a) or 36(2)(aa) is a different question.
In my view, the ordinary meaning of s 22 of the NDLEA Act is that is establishes two separate offences:
(a)the first (s 22(1)) relates to persons who were able to depart from Nigeria carrying 'prohibited narcotic drugs or psychotropic substances' and were able to do so 'without being detected'. from Nigeria to another country;
(b)the second (s 22(2)) relates to overseas convictions for offences 'involving narcotic drugs or psychotropic substances' and who 'thereby brings the name of Nigeria into disrepute'.
I do not accept the applicant’s submission that s 22(2) involves an automatic finding of guilt in that the words ‘thereby’ mean that the fact of a conviction will automatically bring the name of Nigeria into disrepute. Rather, I consider that the bringing of the name of Nigeria into disrepute is a separate element of the offence and that the word ‘thereby’ is intended to require a causative link between the overseas drug conviction and the second element of the offence, namely bringing of the name of Nigeria into disrepute.
I also do not accept the submission that the use of ‘shall’ means that an acquittal is not possible. When the entirety of the NDLEA Act that the applicant provided to the Tribunal is considered, it consistently uses the language of ‘shall be guilty’. Contrary to the submissions advanced by the applicant, that does not mean a charge is automatically proved. Rather, it means that a guilty verdict must be given when the offence's elements are proved.
I do not accept that the words ‘shall be liable to’ indicate a mandatory sentence. The NDLEA uses different language where a mandatory minimum sentence is involved.[88] Doing the best I can in the absence of expert evidence on the point, in my view, where the NDLEA provides that a person ‘shall be liable to’, the provision sets out a maximum sentence unless a minimum is provided for.
[88] See, for example, NDLEA Act, ss 11(d); 14.
In addition to Mr O's opinion, the applicant relies on reports from the NDLEA between 2017 and 2022. The NDLEA reports in its 2017 annual report that during the reporting year:
The Agency received 139 Nigerian nationals that were deported from other countries over drug related offences. The deportees were appropriately debriefed, documented and released on bail.[89]
[89] NDLEA Annual Report 2017, p 47.
The NDLEA reports in its 2018 annual report that during the reporting year:
The Agency received 204 Nigerian nationals (179 males and 7 females) that were deported from other countries over drug related offences. The deportees were appropriately debriefed, documented and released on bail.[90]
[90] NDLEA Annual Report 2018, p 46.
The NDLEA reports in its 2019 annual report that during the reporting year:
The Agency received 85 Nigerian nationals that were deported from other countries over drug related offences. The deportees were appropriately debriefed, documented and released on bail.
The applicant contends, and I accept, that an NDLEA report for 2020 does not appear to be available.
The NDLEA reports in its 2021 annual report that during the reporting year:
The Agency received 76 Nigerian nationals that were deported from fourteen countries over drug related offences. The deportees were appropriately debriefed, documented and released.[91]
[91] NDLEA Annual Report 2021, p 33.
The NDLEA reports in its 2022 annual report that during the reporting year:
The Agency received 97 Nigerian nationals that were deported from fourteen countries over drug related offences. The deportees were appropriately debriefed, documented and released.
The applicant submits that I should infer from the reference to deportees being released 'on bail' that deportees have been arrested and charged with an offence.
Mr O appears to base his conclusion that every Nigerian deported after a drug related conviction is based on the language used in the 2019 NDLEA annual report. I note that Mr O previously gave evidence that he had become aware of matters ‘bordering on’ s 22 matters and otherwise that he had heard of matters being ‘investigated’ under s 22 but had been unable to obtain any supporting documentation, receiving no response to his queries.[92] The applicant did not seek that Mr O give oral evidence before the Tribunal.
[92] TJHG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 812, [121] (Senior Member P A Fairall).
However, as the above extracts demonstrate, there has been a change in the language used by the NDLEA in its reports commencing from 2021. Those reports no longer refer to deportees being released on bail. In those circumstances, it might be said that submission made by the applicant might equally apply such that the absence of any reference to 'bail' in either of the 2021 or 2022 reports would support an inference that deportees are not charged with any offences and are released. Such an inference finds support in both the 2020 DFAT Report and the Section 22 CIR.
There is also a further difficulty. In my view, generalised statements in annual reports as to s 22 of the NDLEA should, in any event, be approached with caution. As I have explained, s 22 contains two separate offences, one of which involves departing Nigeria undetected whilst carrying drugs. It is easy to envisage situations where a person is returned from overseas having departed Nigeria carrying drugs that were not detected but which were detected in the destination country, ultimately leading to their deportation. It is unclear whether the persons referred to in the NDLEA reports relate to s 22(1), s22(2), or both.
Having considered the issue carefully, I am not prepared to place significant weight on and draw inferences from the particular language used in annual reports, which I regard as ambiguous. Mr O’s opinions, based at least in part on the text of an annual report, do not persuade me to approach the matter in any other way. Rather, Mr O’s views and the language used are something that I will consider in my overall consideration, as well as balancing the weight given to the country information before me in resolving the applicant’s claims.[93]
[93] See, e.g., NAHI v Minister for Immigration [2004] FCAFC 10, [11] (Gray, Tamberlin and Lander JJ); EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1177 (Farrell J).
Regarding weight, I note that DFAT Country information reports are intended to be a comprehensive source for decision-makers.[94] Moreover, the 2020 DFAT Report provides:
This report is based on DFAT’s on-the-ground knowledge and discussions with a range of sources in Nigeria. It takes into account relevant information from government and non-government reports, including (but not limited to) those produced by the US Department of State, the UK Home Office, the World Bank and the International Monetary Fund; relevant UN agencies, including the Office of the United Nations High Commissioner for Human Rights (OHCHR), the Office of the United Nations High Commissioner for Refugees (UNHCR), the United Nations Development Programme (UNDP), the United Nations Population Fund (UNFPA) and the International Organization for Migration (IOM); leading human rights organisations such as Human Rights Watch (HRW), Amnesty International and Freedom House; Nigerian non-government organisations (NGOs); and reputable news organisations. Where DFAT does not refer to a specific source of a report or allegation, this may be to protect the source.[95]
[94] DIJ16 v Minister for Home Affairs [2019] FCA 1038, [37] (Mortimer J, as her honour then was).
[95] 2020 DFAT Report, [1.4].
I do not accept the submission that the information in the 2020 DFAT Report regarding the application of the NDLEA Act should be ignored or discounted. I consider the information reported by DFAT credible and reliable, and I am prepared to give it significant weight.
The information in the 2020 DFAT Report is broadly consistent with the Section 22 CIR. I do not accept the submission that the information is typically based on 'Google searches'.[96] That submission misconstrues the true scope of the sources consulted. The sources consulted included, but importantly were not limited to, 'targeted Google searches'.[97] The inclusion of 'targeted Google searches' was appropriate given that the question asked, among other things, sought information about 'open source reports'.[98] Indeed, the failure to search for publicly available or 'open source' reports or information about such prosecutions would have potentially undermined the reliability of the country’s information. I entirely reject the submission that the Section 22 CIR is based on 'Google searches' or should be afforded limited weight because Google searches were used.
[96]       See applicant's written submissions dated 13 November 2024, p 10.
[97]       'Nigeria: Country Information - Decree 33', Department of Foreign Affairs and Trade, 22 January 2024, 20240122172912.
[98]       'Nigeria: Country Information - Decree 33', Department of Foreign Affairs and Trade, 22 January 2024, 20240122172912.
When considering the weight that the competing country information deserves, the 2020 DFAT Report and Section 22 CIR should be given greater weight than the NDLEA annual reports and Mr O's opinions.
I accept that the NDLEA Act remains part of Nigerian law and could potentially apply to the applicant. However, whether there is a real chance of the law being applied to the applicant or applied to the applicant in a way that would engage s 36(2)(a) or 36(2)(aa) is a different question. The question I am dealing with is not whether a law remains ‘on the books’ or is ‘good law’, but rather involves the prospect of the law being applied to the applicant such that it would involve the applicant facing a real chance of serious harm. As I have already observed, a 'real chance' is a prospect that is not 'remote' or 'far‑fetched' but does not require a likelihood of persecution on the balance of probabilities.[99]
[99] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.
I am prepared to accept that the applicant will likely be interviewed about his convictions. However, I am satisfied that he will be able to leave the airport freely after that interview without being detained or charged. I am not satisfied that either the interview itself or anything that might occur during that interview would involve the applicant facing a real chance of serious harm, including, but not limited to, any exposure to torture or coercion.
Based on the 2020 DFAT Report and the Section 22 CIR, both of which I consider credible and ought to be given significant weight, I find that the applicant's chance of being charged, prosecuted, convicted or sentenced because he is a returning Nigerian citizen with overseas drug convictions is remote.
I am not satisfied and do not accept that there is a real chance that the applicant will face further criminal action in Nigeria, whether under s 22 of the NDELA or 'Decree 33' because of his Australian convictions or for any other reason. The country information satisfies me that there have not been any such prosecutions for well over a decade, and I am not satisfied that it is likely to change when the applicant returns to Nigeria or in the reasonably foreseeable future.
Risk of extortion

The applicant further claims that he faces a real risk of significant harm in the form of extortion by the Nigerian authorities in relation to his overseas drug convictions. In this regard, Mr O reported[100]
Whilst we cannot confirm if any payment is being extracted with respect to Section 22 of the NDLEA, there have been multiple reports of NDLEA Officers being arrested for extortion and bribery. Recently, a high-ranking Police Officer was charged to court for offering $61,400 to a senior anti-narcotic operative as inducement to prevent the testing of the 17.55kg of cocaine in Charge Number: FHC/ABJ/CR/408/22 at the Federal High Court, Abuja.
[100] 'Questions on section 22 of the NDLEA Act', Mr O, undated.
Corruption is a significant issue in Nigeria. Police salaries are low, with recruits earning less than USD400 a year. As a result, police officers are susceptible to corrupt practices to supplement their income and many Nigerians view the Police as an endemically corrupt organisation.[101] The Nigerian police are widely regarded as the most corrupt institution in the country.[102] However, steps are being taken to tackle corruption, including an increase in police salaries[103] and the institution of anti-corruption institutions.[104]
[101]      2020 DFAT Report, [5.10].
[102]      2020 DFAT Report, [2.17].
[103]      2020 DFAT Report, [5.10].
[104]      2020 DFAT Report, [2.18].
The applicant's claims to be at risk of extortion are linked to his claims to being exposed to prosecution under s 22 of the NDLEA Act. He asserts that the presence of s 22 'on the books' will allow corrupt authorities to extort him
I have already found that the prospect of the applicant facing serious harm arising out of, or in relation to, being charged, prosecuted, convicted, or sentenced under s 22 of the NDLEA because he is a returning Nigerian citizen with overseas drug convictions is remote. I have also found that there is not a real chance of the applicant being exposed to serious harm whilst he is interviewed in relation to his convictions. I have had regard to the credible country information about the absence of prosecutions in concluding that there is not a real chance that the presence of s 22 of the NDLEA Act on the books will better enable corrupt authorities or officials to extort the applicant. I consider that the prospect of the applicant being extorted by reference to a law that has, based on credible country information, not been used to prosecute anyone for more than a decade would be a remote prospect of occurring.
I have considered whether the applicant faces a real chance of being extorted by the Nigerian authorities at the airport or after he leaves the airport and resumes his daily life. Extortion, or any abuse of office, is illegal in Nigeria.[105] However, there is evidence that it occurs, and I cannot completely exclude the prospect of the applicant being extorted on his return or after he returns. However, I am not at all satisfied that in all the circumstances, the chance of the applicant being extorted or facing serious harm because of, or arising out of, any extortion rises above being a remote chance.
[105] 2020 DFAT Report, [2.16].
I am not satisfied that the applicant faces a real chance of being extorted by corrupt officials at the airport or after his departure from the airport and resumption of life whether on account of his overseas drug convictions or for any other reason, including but not limited to his ethnicity or religion.
I do not accept that the applicant faces a real chance of extortion upon returning to Nigeria, whether at the airport or after he resumes his daily life.
Igbo ethnicity and 'Biafran' identity
The applicant has not expressly claimed to fear harm because of his ethnicity. However, given the country information I referred to above and the fact that a large number of Igbo live in Abia State, I am not satisfied that the applicant faces a real chance of serious harm because of his ethnicity.
The 2020 DFAT Report indicates:[106]
DFAT assesses Igbo are not specifically targeted for discrimination on the basis of their ethnicity throughout Nigeria. Like other non-indigenous communities, Igbo residing outside of their traditional homeland may face localised discrimination
[106] 2020 DFAT Report, [3.10]
I have considered whether the applicant would be persecuted because of his Igbo ethnicity. However, I am not satisfied that he would face discrimination in Abia State, a predominantly Igbo state, for any reason related to his ethnicity.
Biafran
Relatedly, the applicant has also claimed that he identifies as 'Biafran'. In view of the country information before me, I have considered this aspect of the applicant's identity and whether it gives rise to the applicant facing a real chance of serious harm either in isolation or when considered cumulatively with the other claims made by the applicant having regard to my factual findings.
In May 1967, the southeast region of Nigeria declared itself independent as the Republic of Biafra, sparking a three-year civil war that ended in January 1970 with Biafra’s defeat.[107] Some political organisations continue to advocate for an independent Biafran state and occasionally clash with security authorities.[108] The two most prominent are the Movement for the Actualisation of the Sovereign State of Biafra ('MASSOB') and the Indigenous People of Biafra ('IPOB').[109] Both organisations typically draw their support from the Igbo speaking peoples of Abia, Anambra, Ebonyi, Enugu and Imo.[110]
[107]      2020 DFAT Report, [2.2].
[108]      2020 DFAT Report, [3.9].
[109]      2020 DFAT Report, [3.48].
[110]      2020 DFAT Report, [3.48].
The 2020 DFAT Report indicates:[111]
DFAT assesses that, as members of a proscribed organisation, IPOB members face a risk of arrest that is likely to be higher for those in leadership positions. Ordinary members of IPOB, MASSOB and other Biafran secessionist organisations who participate in political demonstrations or rallies face a moderate risk of being subjected to violence by state security forces.
[111] 2020 DFAT Report, [3.52].
I accept that the applicant identifies as Biafran in addition to being of Igbo ethnicity. The applicant did not claim to have been a member of IPOB or MASSOB. The applicant did not claim to have been involved in any activities in Australia or Nigeria that might result in him having a profile that might be, or be perceived to be, against the Nigerian government or in support of Biafra’s seceding from Nigeria.
I do not accept that the applicant would face a real chance of harm because he identifies as Biafran. I am further not satisfied that the applicant would, whether now or in the reasonably foreseeable future, join IPOB or MASSOB or engage in political activities or activism towards those causes.
I am not satisfied that the applicant faces a real chance of serious harm for any reasons related to, or arising out of, his Igbo or identity as a Biafran.
Other claims arising
General crime and insecurity
I have also considered whether the general crime and insecurity in Nigeria is such that it may support the conclusion that the applicant faces a real chance of serious harm. Based on the country information available, I am not satisfied that the applicant faces a greater than remote chance of facing serious harm arising from Nigeria's general crime and insecurity.
Even if I were satisfied that the applicant faced a real chance of serious harm on this basis (which I am not), any harm feared by the applicant on account of 'general crime' and 'insecurity' is not, I find, harm that is feared for a s 5J(1)(a) reason. As such, it cannot amount to a well-founded fear of persecution. Moreover, the prevailing crime situation and insecurity apply to Nigeria's population generally and not the applicant personally.
I am not satisfied, on the material before me, the situation in Abia State is such that generalised crime and insecurity is more prevalent or likely than in the rest of Nigeria or that the applicant faces a greater risk in Abia State than the population generally. In those circumstances, there is taken not to be a real risk of significant harm.[112]
[112] Migration Act 1958 (Cth), s 36(2B)(c).
I am not satisfied that these matters engage either s 36(2)(a) or (aa) of the Act.
Absence from Nigeria and time spent in Australia
Whilst not expressly claimed by the applicant, I have also considered whether the applicant faces a real chance of serious or significant harm as a Nigerian citizen returning to Nigeria after living in Australia for a significant period or because of his long absence from Nigeria. Having done so, I am not satisfied that there is a real chance that the applicant would face serious harm for any of these reasons. There is nothing in the country information to indicate that people with those attributes or profiles are targeted for harm or face a real chance of serious harm. I am not satisfied that the applicant will be discriminated against on that basis or for any other reason.[113] I am satisfied that the applicant will be able to support himself to at least a subsistence level and will not be denied access to services or the capacity to access basic services in any way that will threaten his subsistence.
[113] cf 2020 DFAT Report, [3.6].
I am not satisfied that the applicant faces a real chance of serious harm because of his time spent living in Australia and his long absence from Nigeria.
I have further considered whether the applicant being identified as a failed asylum seeker will involve him facing a real chance of serious harm. Based on the country information that I referred to above in relation to returnees to Nigeria, I am not satisfied and do not accept that the applicant would face a real chance of serious harm on the basis that he was a failed asylum seeker, even assuming he was identified as such.
Cumulative consideration of claims
I have also considered the applicant's claims on a cumulative basis. For example, I am not satisfied that the applicant faces a greater than remote chance of extortion because of his absence from Nigeria. I do not accept that the applicant would be prosecuted under the NDLEA Act for any reason related to his Igbo or ethnicity or Biafran identity. I am further not satisfied that the presence of 'Muslim-aligned police officials and related people' would expose the applicant to a real chance of serious harm in relation to any of his claims. My cumulative consideration of the claims has also included the claims related to generalised crime and insecurity in Nigeria.
There is no feature of any of the above claims that, when considered collectively with one or more or all the other claims, would lead me to conclude or be satisfied that the applicant faces a chance of serious harm. I am comfortably satisfied that the prospect of the applicant facing serious harm because of the combination of his claims is remote, and considering all the applicant's claims collectively, I am not satisfied that he faces a real chance of serious harm as that term is non-exhaustively defined in the Act.
Refugee protection criterion - conclusion
For the above reasons, I am not satisfied the applicant has a well-founded fear of persecution within the meaning of s 5J(1) of the Act or that the applicant is a refugee within the meaning of the Act. It follows that the applicant does not satisfy the refugee criterion in s 36(2)(a) of the Act.
DOES THE APPLICANT SATISFY THE COMPLEMENTARY PROTECTION CRITERION?
To satisfy s 36(2)(aa) of the Act, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk that they will suffer significant harm.[114]
[114] Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[115] Where claims overlap, I am permitted to refer to and rely on my relevant findings when considering the refugee criterion under s 36(2)(a) when assessing whether the applicant satisfied s 36(2)(aa).[116]
[115] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 [246] (Lander and Gordon JJ), [296] (Besanko and Jagot JJ), [342] (Flick J).
[116] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [27] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) and the authorities there cited.
Having regard to my findings above, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk that they will suffer significant harm. I am not satisfied that the applicant will face a real risk of significant harm for any other reason, including on a cumulative consideration of the claims raised.
For the above reasons, the applicant does not satisfy the complementary protection criterion in s 36(2)(aa) of the Act.
CONCLUSION
The applicant is not a person in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a). I have also considered the alternative criterion in s 36(2)(aa) and find that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) based on being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2). The decision under review should be affirmed.
DECISION
The Tribunal affirms the decision under review.

Date of hearing:

15 November 2024; written submissions dated 18 December 2024.

Representative for the Applicant:

Mr M Northam

Respondent:	Minister for Immigration and Multicultural Affairs
Tribunal Number:	2435396
Tribunal:	General Member F Robertson
Date of written statement:	3 January 2025
Place:	Perth
Decision:	The Tribunal affirms the decision under review

Date of hearing:	15 November 2024; written submissions dated 18 December 2024.
Representative for the Applicant:	Mr M Northam